HKSAR v. Jiang Guohua

CACC31/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 31 OF 2005

(ON APPEAL FROM HCCC NO. 302 OF 2004)

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BETWEEN

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Before : Hon Ma CJHC, Stock & Yeung JJA in Court

Date of Hearing : 18 May 2005

Date of Judgment : 18 May 2005

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J U D G M E N T

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Hon Ma CJHC (giving the judgment of the Court) :

1.On 13 January 2005, the Applicant was convicted on his own plea of a charge of wounding with intent contrary to section 17 of the Offences against the Person Ordinance, Cap. 212 (“the Ordinance”).  The same day, Deputy High Court Judge Wright sentenced him to a term of 8 years’ imprisonment.  Originally, the Applicant had been jointly charged with a woman, Lei Yufeng (“Lei”) but for reasons which are not relevant, the charge against her was not proceeded with.

2.The facts were these : -

(1)	The wounding took place on 22 May 2004 in a flat in Kwun Tong.  The flat was occupied by Lei, who had come to Hong Kong on a two-way permit, working as a prostitute.
(2)	The victim was Lei’s customer who plied her with gifts and money in an attempt, vain as it turned out, to persuade her not to see other customers.  Rebuffed, the victim went to Lei’s flat on the day in question to demand the return of a gold necklace and some money.  An argument ensued.
(3)	In the course of the argument between the victim and Lei, the Applicant came out of a room and began shouting at the victim in Putonghua, a dialect he did not understand.  Then he attacked the victim with a chopper and as the victim struggled, stabbed him in the neck with a knife.  Extremely serious and multiple wounds were sustained by the victim to the neck, head and both hands.  His right ring finger was severed.  We will not go into all the details of the injuries but they included deep lacerations, tendon injuries (tendons were cut on both hands), fractures of the right hand, a cracked skull, nerves and blood vessels were cut and gas was seen to be emitted from his neck and skin.  These were horrendous injuries that had been inflicted on the victim by the Applicant.
(4)	It was fortuitous that police officers were outside the flat as the wounding took place (they were observing the flat as they suspected that vice activities were being carried out there).  As they broke into the flat on hearing the victim’s cries for help, they saw (and recorded by camera) the victim lying in a large pool of blood with what the Judge described as “large swathes of venous and arterial blood” spread across a large area of the floor of the living room.

3.After remarking in his Reasons for Sentence that the victim spent ten days in intensive care (a tracheotomy was performed), the Judge said this : -

“It is remarkable that he [the victim] survived your [the Applicant’s] assault upon him.  That he did so, or that he was not more disabled by the attack, is sheer good fortune.  It does not reflect to your credit.”

An assessment was given of this incident in the following way and it is an analysis with which we agree : -

“You set about this man’s head, face and throat, particularly vulnerable parts of the body, with a weapon capable of inflicting lethal wounds.  Not satisfied with that part of your handiwork, when your victim cried out, you then changed weapons and deliberately stabbed him in the neck.  You showed him not a shred of mercy.”

4.In sentencing the Applicant, apart from describing the violence of the attack, the Judge made the following points : -

(1)	This attack by the Applicant was not premeditated but occurred on the spur of the moment.  The Applicant had only been in Hong Kong for a day and he had not come here for the purpose of harming anyone.  That said, the attack was, however, initiated by the Applicant.
(2)	The Judge accepted the fact that Lei was the Applicant’s wife and that he had apparently come to Hong Kong to persuade her to return home and to dissuade her from continuing to live in Hong Kong as a prostitute.  This much the Judge acknowledged but said that none of this provided a justification for or mitigation of the wounding.  The only relevant mitigation, the Judge thought, was the plea of guilty.

5.In this application, Mr C K Wong who represents the Applicant has laid particular emphasis on the failure of the Judge to take into account the factor that “[Lei’s] affairs with the victim and the quarrel may amount to provocation for the attack”.  There are two points of note here.  First, the quarrel relied on here was one between the Applicant and the victim.  When the victim and Lei were arguing over the return of the gold necklace and money, the Applicant came out of a room and started shouting at the victim in Putonghua which the victim did not understand.  This was the extent of the quarrel between the Applicant and the victim.  Out of completeness, Mr Wong also referred to the quarrel over money between Lei and the victim.  Secondly, the use of the words “may amount to provocation” is important.  As Mr Tse (for the Respondent) has pointed out in his written submissions, there is no evidence of provocation.  We agree.  While provocation (although not a defence to an offence of wounding under section 17 of the Ordinance) can provide some mitigation to sentence, it is not borne out on the facts of the present case.  As is well-known, there is both a subjective and objective test in order to establish provocation as a defence to murder (see here R v Cambridge [1994] 1 WLR 971 at 975; R v Acott [1997] 2 Cr App R 94, at 102; both these cases were referred to in HKSAR v Ma Siu Chiu [2004] 1 HKC 253).  The evidence in the present case fails to satisfy either test.  We would observe here that in the Summary of Facts, it was recorded that after the Applicant’s arrest and after he had been cautioned, he said “My wife and the old man quarrelled over money.  Therefore, I helped her to stab the old man with a sharp knife.”  Later, in a video recorded interview, he told the police that just before the chopping began, the victim had repeatedly said to the Applicant he was going to make a report to the police.  These statements are hardly consistent with any act of provocation on the victim’s part reasonably to cause the frenzied attack in the present case where, in the Judge’s words, the Applicant showed the victim “not a shred of mercy”.

6.Mr Wong has cited a number of authorities relating to manslaughter by reason of provocation.  For the reasons earlier given, we are not convinced that provocation is applicable in the present case.  One authority did not involve provocation.  In The Queen v Tin Chi Chak, unreported, CACC 446/1990, 25 July 1991, the Court of Appeal upheld a sentence of 7 years (imposed we would stress in the District Court) in relation to a “murderous attack” with a revenge aspect.

7.Mr Tse for his part has also referred to a number of authorities.  The most recent of these is a decision of this Court, HKSAR v Yuen Wai Kui, unreported, CACC 280/2004, 28 April 2005.  In that case, the victim was rendered into a vegetative state following the defendant beating him within “an inch of his life”.  This Court reduced the sentence of 10 years imposed (after a plea of guilty) by the trial judge to one of 5 years (adopting a starting point of 7½ years).  The attack was, significantly, one that was started by the victim striking the first blow and indeed it was the victim who chased after the defendant before the incident took place.  In addition, money was owed by the victim to the defendant in that case.

8.In his Reasons for Judgment, Tang JA referred to what Fuad VP said in Attorney General v Lam Yat Sing, unreported, CAAR 14/1992, 14 January 1993, Court of Appeal : -

“… everything will depend so heavily on the particular facts of each case.”

9.It is clear from this case and others that in passing sentence regarding a charge such as wounding under section 17 of the Ordinance, the Court (as in all cases) must look at the matter from all angles.  Not only must the circumstances of the offence be looked at (and in a wounding case, the Court must have regard in particular to the relationship between the person charged, the victim and any third person), but regard should also be had to the public interest as well.  As to this latter aspect, the need to deter can be a relevant consideration (see for example Secretary for Justice v Lam Kai Wah [2000] 1 HKC 738).

10.In the present case, the relevant factors are these : -

(1)	The wounding, albeit unpremeditated, was an extremely serious and violent one.  As the Judge remarked early on in his Reasons for Sentence, the Applicant could perhaps equally have been charged with attempted murder.
(2)	It was completely unprovoked and entirely initiated by the Applicant.
(3)	While the Applicant was armed with a chopper and later a knife, the victim was unarmed.
(4)	No mercy was shown to the victim.  We daresay that but for the police being present nearby (and here the victim was very fortunate), he might well have been killed.  The Applicant demonstrated a complete disregard for another human being’s life.
(5)	Horrific wounds were inflicted on the victim.  The prognosis is that the victim will suffer a permanent loss of range of his right hand and of course, he has lost a part of his right ring finger.  He has a permanent disability.

11.In these circumstances, the starting point of 12 years taken by the Judge was entirely correct.  With the plea of guilty, this was reduced to 8 years.

12.Mr Wong also raised a number of other aspects in his written submissions, such as that the Judge equated the sentencing exercise for the section 17 wounding with one of attempted murder.  He did no such thing.  It was also said that the Judge was overborne by the seriousness of the victim’s injuries as depicted in the police photographs.  He certainly (as he ought to have done) took them into account but not unduly so.  As for other features of the case of which the Applicant argues the Judge ought to have taken fully into account, with respect, he did.  In our view, the Applicant can consider himself somewhat fortunate that he was, even with a plea, sentenced to only 8 years’ imprisonment.

13.The application is entirely without merit and we dismiss it.

Mr Wong Chi Kwong instructed by Messrs Lo Wong & Tsui for the Applicant

Mr Hayson K S Tse of the Department of Justice for the Respondent